the Dubbs panel's decision that plaintiff's equal protection claims are colorable (see id., at 1119 & n. 8), something which this Court is not at liberty to do in the absence of a contrary decision from the Ninth Circuit or a higher court.
The Ninth Circuit's decision in High Tech Gays does not compel a different result. In fact, High Tech Gays, although generally helpful to defendants, suggests that granting defendants' motion with respect to this claim is unwarranted.
High Tech Gays involved an equal protection challenge to the Department of Defense's policy of subjecting homosexual, but not heterosexual, applicants for security clearances to an expanded investigation of their personal lives because of their sexual orientation and conduct. As noted above, the Ninth Circuit initially found that the Defense Department security clearance regulations at issue were to be reviewed under a rational basis standard, and not under any heightened scrutiny. 895 F.2d at 571-574. The Court of Appeals then proceeded to examine the evidence in the record in order to determine if a genuine issue of fact remained as to the issue of whether the Defense Department's policy was rationally related to a legitimate government interest. After examining the exhibits introduced by all parties, the Court of Appeals found that the Department of Defense "met its initial burden of production" (demonstrating the possible existence of a rational basis for its regulations) and that "plaintiffs' affidavits do not raise genuine issues as to any fact material to [their equal protection claim]." 895 F.2d at 578.
If defendants' argument that this Court may properly decide the constitutionality of a blanket policy of denying all homosexual persons access to SCI upon a motion to dismiss were correct, then the High Tech Gays court should not have proceeded to examine the evidence adduced by the parties. Rather, after having decided the appropriate level of scrutiny, it should have presumed, as defendants ask this Court to do, that the Department of Defense acted rationally in subjecting all persons who engage in homosexual conduct to an expanded security clearance check. The fact that the court in High Tech Gays did not adopt this approach indicates that it necessarily assumed that government had to articulate a rational relationship between their policy and the ends which it is designed to serve.
Lastly, defendants' position is directly contrary to those cases which have held that a government agency which discriminates against homosexuals "must justify that discrimination in terms of some government purpose," Padula v. Webster, 261 U.S. App. D.C. 365, 822 F.2d 97, 104 (D.C. Cir. 1987) or which have required the government to demonstrate the existence of a rational nexus between the denial of the security clearance and the applicant's homosexual activity. See, e.g., Gayer v. Schlesinger, 160 U.S. App. D.C. 172, 490 F.2d 740, 748-752 (D.C. Cir. 1973); McKeand v. Laird, 490 F.2d 1262 (9th Cir. 1973) (upholding district court's granting of summary judgment against applicant who was denied a security clearance because of homosexual activity where the denial was supported by factual findings demonstrating the existence of a rational nexus). None of these courts found it proper to imagine that a legitimate government interest would necessarily be served by denying a security clearance to a homosexual and then summarily uphold this denial, as defendants invite this Court to do.
While the Supreme Court's decision in Bowers v. Hardwick, 478 U.S. 186, 92 L. Ed. 2d 140, 106 S. Ct. 2841 (1986) has been interpreted to mean that government actions that discriminate based upon homosexuality or homosexual conduct are not subject to heightened scrutiny, no court, so far as this Court is aware, has interpreted Bowers to allow for the elimination of the equal protection rights of homosexuals.
Accordingly, finding no precedent compelling a contrary result, and because the Court cannot say beyond doubt and under any set of facts that this claim must fail, it hereby denies defendants' motion to dismiss with respect to plaintiff's first claim.
For the benefit of all parties, the Court wishes to spell out how it believes that the constitutionality of this claim should be resolved. The Court has determined that this claim ought to be resolved according to the following three-step process, which it has derived based upon its reading of the Ninth Circuit's decisions in Dubbs and High Tech Gays :
(1) This Court, as trier of fact, will first make findings regarding the factual issues of what the CIA's policy towards homosexuals and/or persons who engage in homosexual conduct actually is (i.e., a policy of denying security clearances to all such persons, or treating such conduct as a "negative factor", or something else) and what are the government interests which this policy is supposed to serve.
The Ninth Circuit, in Dubbs, stated that whether a blanket policy existed was a triable issue of fact. Dubbs, 866 F.2d at 1119. Thus, because the defendants deny that such a policy exists, this Court might have to hold a trial in order to resolve this issue.
(2) After determining the policy and the government interests served by it, this Court then must determine what are the reasons for this policy which indicate, or fail to indicate, that this policy is rationally related to these interests.
The Court believes that this also is a factual issue. As noted above, in High Tech Gays the government offered, as its reason for the policy at issue, evidence indicating that hostile foreign intelligence services specifically target persons who engage in homosexual conduct for blackmail or coercion. 895 F.2d at 574-78. Because the plaintiffs then failed to offer evidence which indicated that foreign intelligence services did not follow such a practice, the Ninth Circuit found that no factual dispute remained for trial with respect to the existence of the factual premise for the policy at issue. Id. at 578.
(3) Assuming that the factual issues in (1) and (2) are settled, this Court will then decide, as a matter of law, whether the identified policy is or is not rational.
It may turn out that not all of these steps will have to be followed. For example, if no blanket policy is found by the trier of fact to exist, then obviously the constitutionality of such a policy need not be decided. Because this Court believes, however, in refraining from unnecessarily deciding constitutional issues, the existence of this policy and the interests it is intended to serve (step 1) must first be settled. Accordingly, the Court envisions that the factual issues in step 1 should probably be severed out for a separate trial. The parties, of course, are welcome to suggest any other ideas which they might have, bearing in mind that this Court does not feel it proper to decide constitutional issues unnecessarily.
B. The APA Claim.
Defendants contend that this claim does not state a basis for relief for two reasons. First, defendants argue that this claim is defectively pleaded because the statute under which judicial review is sought, the Administrative Procedure Act is not mentioned nor cited. Second, defendants contend that the regulation which the CIA is alleged to have violated does not create any justiciable standards, and therefore judicial review is precluded by virtue of 5 U.S.C. § 701(a) (2), which forecloses judicial review of an agency decision that is "committed to agency discretion by law."
The Court agrees with defendants that this claim is unartfully pleaded. Plaintiff, while obviously intending to assert that the CIA's alleged violation of Director of Central Intelligence Directive No. 1/14 (Nov. 27, 1984) ("DCID 1/14") is reviewable under Administrative Procedures Act as an arbitrary and capricious agency action, nonetheless asserts that the CIA's actions lack a "rational basis" and violate her "due process" rights; such language essentially repeats the equal protection claims, and does not appear explicitly to state a separate claim for relief under the Administrative Procedure Act.
However, such a defect is at most a technical one which could be overcome by more careful pleading, and therefore the Court would be inclined to grant her leave to amend this claim, if defendants' second contention is incorrect.
Determining if judicial review of a challenged agency action is precluded by section 701(a)(2) of the Administrative Procedure Act ("APA") turns upon whether "the statute is drawn so that a court would have no meaningful standard against which to judge the agency's exercise of discretion." Webster, 108 S. Ct. at 2052, citing Heckler v. Chaney, 470 U.S. 821, 830, 84 L. Ed. 2d 714, 105 S. Ct. 1649 (1985). Accordingly, the Court turns to the language of the guidelines at issue.
In the very first paragraph, DCID 1/14 states that:
The standards, procedures, and programs established herein are minimum and the departments and agencies may establish such additional security steps as may be deemed necessary and appropriate to ensure that effective security is maintained.
With respect to the background investigation that is conducted, DCID 1/14 indicates only that the investigation "will be thorough and shall be designed to develop information as to whether the individual clearly meets the . . . Personnel Security Standards." DCID 1/l4, para. 7.a. These Personnel Security Standards are explained and expanded upon in section entitled "Annex A Adjudication Guidelines." ("Annex A").
Plaintiff essentially contends that defendants violated the guidelines set forth in DCID 1/14 (and Annex A) by focusing exclusively upon her homosexuality and homosexual conduct in deciding to deny her access to SCI, rather than considering her other personal attributes and characteristics.
Defendants argue that DCID 1/14 exudes such deference to the CIA's authority to grant or deny SCI access that plaintiff's APA claim, even if it were properly plead, is unreviewable. They cite Padula v. Webster, 261 U.S. App. D.C. 365, 822 F.2d 97 as persuasive authority.
Padula involved an action brought against the Federal Bureau of Investigation ("FBI") by an applicant who alleged that the FBI refused to hire her as a special agent because of her homosexuality. The plaintiff argued that the FBI's pronouncements in various letters to law schools and elsewhere established a policy of nondiscrimination based upon sexual orientation. The District of Columbia Court of Appeals there found the plaintiff's APA claim unreviewable under 5 U.S.C. section 701(a) (2) because these pronouncements could not be read to establish such a policy:
Indeed, the FBI was very careful -- if a bit clever -- not to tie its hands in any way. For example, instead of executing a statement of nondiscrimination at Syracuse University, the Bureau simply reiterated its policy 'not to improperly discriminate against any applicant.'